Commonwealth v. Smith

270 A.3d 1153 (Table)

COMMONWEALTH of Pennsylvania

v.Dashawn SMITH, Appellant

No. 817 EDA 2020

Superior Court of Pennsylvania.

Filed December 21, 2021

MEMORANDUM BY COLINS, J.:

Appellant, Dashawn Smith, appeals, pro se , from the order entered January 31, 2020¹ dismissing his first petition filed under the Post Conviction Relief Act ("PCRA").² We affirm in part, vacate in part, and remand for further proceedings.

This appeal relates to three separate criminal cases for which Appellant was sentenced jointly. At CP-46-CR-0005110-2013 ("5110-2013"), Appellant was convicted on July 8, 2016, after a stipulated bench trial, of persons not to possess firearms and possession with intent to deliver a controlled substance ("PWID").³ On December 14, 2016, Appellant received an aggregate sentence of 6 years and 3 months to 14 years of imprisonment in this matter.

At CP-46-CR-0000753-2016 ("753-2016"), Appellant's suppression motion was denied on September 26, 2016 at which point he proceeded directly to a stipulated non-jury trial. On that same date, the trial court convicted Appellant of PWID, criminal conspiracy, and resisting arrest.⁴ Appellant was sentenced on December 14, 2016 to an aggregate term of 27 months to 6 years, consecutive to the sentence at 5110-2013.

At CP-46-CR-0000745-2016 ("745-2016"), Appellant entered a guilty plea to criminal trespass⁵ on December 14, 2016. The trial court sentenced Appellant on that date to 3 to 24 months of imprisonment, concurrent with the sentence at 5110-2013. Therefore, the aggregate sentence imposed by the trial court at the three dockets was 8½ to 20 years imprisonment.

Appellant filed a timely appeal of the three judgments of sentence, and on April 9, 2018, this Court issued a decision affirming the judgments. Appellant sought allowance of appeal with the Pennsylvania Supreme Court, which was denied on April 16, 2019.

On May 1, 2019, the lower court received a letter from Appellant stating as follows:

Dear William R. Carpenter^[6]

I am writing this to [ ] you asking for all my documents, Affidavit, transcripts for case # CP-46-CR-0005110-2013

CP-46-CR-0000745-2016

CP-46-CR-0000753-2016

I will like to go Pro se with putting my PCRA in the courts. I don't have any funds in my account and haven't in months. I try to ask my attorney but was unsuccessful with all my trys [sic]. I am deeply sorry for taking time out your day with this. I need everything I am asking for to do my PCRA.

Pro Se Correspondence, Received 5/1/19.

The PCRA court treated this letter as a request for PCRA relief and appointed Robert L. Adshead, Esquire, as counsel to assist Appellant by order entered on September 5, 2019.⁷ PCRA counsel was granted two extensions and on December 30, 2019, submitted a no-merit letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc ), and requested leave to withdraw from representation of Appellant.⁸

On January 7, 2020, the PCRA court entered an order granting PCRA counsel leave to withdraw and notifying Appellant that the court intended to dismiss his request for PCRA relief in 20 days pursuant to Rule of Criminal Procedure 907. Appellant filed a pro se response to the Rule 907 notice, in which he argued that the PCRA court's appointment of counsel violated his due process and equal protection rights.⁹ On January 31, 2020, the PCRA court filed an order dismissing Appellant's PCRA petition. Appellant thereafter filed this timely, pro se appeal.¹⁰

On appeal, Appellant raises the following issues:

1. Whether the lower court abused its discretion, exceeded its authority and jurisdiction when it construed a letter sent by [Appellant] to the court seeking documents as a PCRA petition?

2. Whether PCRA counsel abandoned his duty under 42 Pa.C.S. § 9541 et seq. by failing to raise the following ineffective assistance of counsel claims:

(a). Trial counsel was ineffective for misleading [Appellant] into admitting guilt (i.e. signing a "stipulated bench trial agreement" and participating in a "stipulated bench trial" which is now being construed as a "guilty plea") thereby depriving [Appellant] of his constitutional right to a fair trial and relieving the Commonwealth of its burden of persuading the factfinder "beyond a reasonable doubt" of the facts necessary to establish each element of the charges.

(b). Trial counsel was ineffective for failing to investigate and interview Melissa Griffin concerning facts relevant to [Appellant's] innocence of conspiracy to possess with intent to deliver, and possession with intent to deliver.

(c). Trial counsel was ineffective for failing to move to suppress the evidence in this case obtained as a result of the illegal nighttime searches conducted at 3 W. 4th St. and 416 E. Vine St.

3. Whether this case should be remanded to the lower court for the proper filing of a PCRA petition, consideration of the ineffective assistance of counsel claims, and an evidentiary hearing?

Appellant's Brief at 4-5 (lower court disposition and unnecessary capitalization omitted).¹¹

We review the denial of PCRA relief to decide whether the PCRA court's factual determinations are supported by the record and its legal conclusions are free of error. Commonwealth v. Small , 238 A.3d 1267, 1280 (Pa. 2020). When supported by the record, the PCRA court's factual findings and credibility determinations are binding on this Court, but we review the lower court's legal conclusions under a de novo standard of review. Id. Our scope of review is limited to the findings of the PCRA court and the evidence of record, which we view in the light most favorable to the Commonwealth, the party who prevailed below. Id.

Appellant first argues that the PCRA court "lacked authority, jurisdiction, and abused its discretion" by appointing PCRA counsel on his behalf and depriving him of the opportunity of preparing and filing his own pro se PCRA petition.¹² Appellant's Brief at 15. Appellant claims that the PCRA court misinterpreted his May 1, 2019 letter as he was not in fact asking for the assistance of counsel to file a PCRA petition on his behalf and instead he only sought transcripts and other documents from his cases. Appellant contends that the PCRA court's action in appointing counsel and PCRA counsel's hasty submission of the no-merit letter in the end deprived him of the full year as to which he was entitled under the PCRA to marshal the relevant evidence and prepare his petition. Appellant therefore seeks the reversal of the PCRA court's order and a remand to allow him to file a pro se petition.

Under Rule of Criminal Procedure 904(C), "when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief." Pa.R.Crim.P. 904(C). An indigent criminal defendant thus has a rule-based right to the assistance of counsel on his first PCRA petition. See Commonwealth v. Kelsey , 206 A.3d 1135, 1139 (Pa. Super. 2019) ; Commonwealth v. Cherry , 155 A.3d 1080, 1082 (Pa. Super. 2017). "The indigent petitioner's right to counsel must be honored regardless of the merits of his underlying claims, even where those claims were previously addressed on direct appeal, so long as the petition in question is his first." Kelsey , 206 A.3d at 1139 (citation omitted). The importance of the right to counsel in a first PCRA petition "cannot be diminished merely due to its rule-based derivation" as "important rights and defenses may be forever lost" if the petitioner is denied the right to counsel. Commonwealth v. Robinson , 970 A.2d 455, 458-59 (Pa. Super. 2009) (en banc ).

"When appointed, counsel's duty is to either (1) amend the petitioner's pro se Petition and present the petitioner's claims in acceptable legal terms, or (2) certify that the claims lack merit by complying with the mandates of Turner /Finley ." Cherry , 155 A.3d at 1083. Where counsel seeks to withdraw under Turner /Finley , he must file a no-merit letter detailing his review of the case and his explanation why each of the issues the petitioner seeks to raise are meritless. Kelsey , 206 A.3d at 1139. If counsel fails to file an adequate no-merit letter, the PCRA court's subsequent "dismissal of the PCRA petition without requiring counsel to file an amended PCRA petition or a further, adequate no-merit letter is a deprivation of the right to counsel on the PCRA petition." Id.

While an indigent PCRA petitioner has the right to counsel for his first petition, he also has a constitutional right to represent himself in the PCRA proceedings. Commonwealth v. Grazier , 713 A.2d 81, 82 (Pa. 1998) ; Robinson , 970 A.2d at 457-58. Pursuant to Grazier , in cases where a petitioner makes a "timely and unequivocal request" to proceed pro se and counsel has not already withdrawn through the Turner /Finley procedure, a PCRA court may not "simply deny the request and refer the matter to counsel." Grazier , 713 A.2d at 82 ; see also Robinson , 970 A.2d at 459-60. Instead, the PCRA court must hold a hearing and colloquy the petitioner in order to ascertain that the waiver was knowing, voluntary and intelligent and that the petitioner "understands the ramifications of a decision to proceed pro se and the pitfalls associated with his lack of legal training." Robinson , 970 A.2d at 459-60.

In this matter, the PCRA court concluded that Appellant's claim that the court misinterpreted his May 1, 2019 letter was meritless and that, in any event, Appellant suffered no prejudice from the appointment of counsel. PCRA Court Opinion, 1/5/21, at 5.

The pro se correspondence dated May 1, 2019, set out [Appellant's] desire to seek PCRA relief and to have the assistance of counsel to do so. Based upon this communication, this Court appointed PCRA counsel to do just that, assist [Appellant] with a PCRA petition. PCRA counsel [conferred]

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